Imagining World Order

Literature and International Law in Early Modern Europe, 1500–1800

Chenxi Tang

• Publisher: Cornell University Press
• Year: 2018
• ISBN:
  9781501716928
• Topic: Literature
• Subtopic: Medieval & Early Modern Literary Criticism
• Index: Literature

In early modern Europe, international law emerged as a means of governing relations between rapidly consolidating sovereign states, purporting to establish a normative order for the perilous international world. However, it was intrinsically fragile and uncertain, for sovereign states had no acknowledged common authority that would create, change, apply, and enforce legal norms. In Imagining World Order, Chenxi Tang shows that international world order was as much a literary as a legal matter. To begin with, the poetic imagination contributed to the making of international law. As the discourse of international law coalesced, literary works from romances and tragedies to novels responded to its unfulfilled ambitions and inexorable failures, occasionally affirming it, often contesting it, always uncovering its problems and rehearsing imaginary solutions.

Tang highlights the various modes in which literary texts—some highly canonical (Camões, Shakespeare, Corneille, Lohenstein, and Defoe, among many others), some largely forgotten yet worth rediscovering—engaged with legal thinking in the period from the sixteenth to the eighteenth century. In tracing such engagements, he offers a dual history of international law and European literature. As legal history, the book approaches the development of international law in this period—its so-called classical age—in terms of literary imagination. As literary history, Tang recounts how literature confronted the question of international world order and how, in the process, a set of literary forms common to major European languages (epic, tragedy, romance, novel) evolved.

Chapter 1

The Old World Order Dissolving

At the time around 1500, a new world—in multiple senses—opened up for Europeans. There was, of course, the discovery of a new continent on the other side of the Atlantic as well as the exploration of the African coasts and the East Indies. There was also the Protestant Reformation, which would in due time divide, convulse, and transform Christian Europe. Last but not least, the rise of principalities on the Italian peninsula, the concomitant power struggle, and the intervention of the big powers France and Spain in Italian politics created a political space populated with self-interested, power-seeking rulers who would soon insist on nothing less than their sovereignty. Under the pressure of these cataclysmic events, traditional models of normative order, particularly those concerning the relations between political communities, crumbled. The time around 1500 has often been considered to be the great divide between an old, medieval world order and a new, modern world order. In his Nomos der Erde (1950), the twentieth-century German legal thinker Carl Schmitt sees the 1494 Treaty of Tordesillas (the treaty by which Spain and Portugal, under the auspices of the Pope, divided up the recently discovered lands in the New World, as well as those yet to be discovered) as the beginning of a “global linear thinking” (globales Liniendenken) that underpinned a modern world order called jus publicum europaeum. This world order, according to his grand narrative, lasted until the First World War.¹ Drawing on the work of generations of historians, the legal historian Wilhelm Grewe also dates the beginning of the modern world order to 1494, although he emphasizes another event taking place in that year, namely the invasion of Italy by Charles VIII of France. That event, he maintains, inaugurated a European state system on which modern international law depends.² Some other scholars, leery of the neat division of European history into medieval and modern eras, consider the time around 1500 to be not a rupture but a phase in the long-term transformation of “the canonistic-papal conception of world order” into “a secularized world order” as articulated by Grotius’s system of international law. This transformation was not marked by “a clear, bright line,” but stretched over “a zone several centuries in length.”³

Instead of interpreting the cataclysmic events around 1500, this chapter tracks the general disorientation and reorientation that they triggered during the following century. The conceptual reformulation of natural law theory and the renaissance of epic poetry serve as good examples in this regard. The ancient tradition of natural law postulated a universal, immutable, and objective order of the world in the form of a set of commands and prohibitions supposed to be immediately valid in all human societies, within a particular political community as well as between political communities. The tradition culminated in Thomas Aquinas (1225–74). In the sixteenth century, a new wave of Thomism known as Spanish Neoscholasticism recalibrated its conceptual makeup. The first important representative of Spanish Neoscholasticism, Francisco de Vitoria (1483–1546), raised a new question about natural law in response to the legal challenges posed by the Spanish conquest of the Americas: who can be considered the subject of natural law? Such a question led to the idea of subjective natural right. Accordingly, the normative order of the world seemed not so much to be objectively given once and for all as to be a provisional result of the negotiations between the subjects of natural law in pursuing their respective rights. Vitoria used the term ius gentium, known from Roman law, to designate the law that does justice to subjective rights. Understood in this sense, ius gentium, or the law of nations, may or may not have a universal scope as the traditional natural law does. It certainly does not remain the same all the time, for it depends on the voluntary consent of the subjects of natural law, which in turn depends on the vagaries of circumstances. The universal laws of nature fell into a state of flux.

While the ancient natural law theory was debated and reformulated, the epic poetry of classical antiquity was revived. The classical epic portrays a cosmic order in action, setting forth, in particular, a lawful order between political communities under the auspices of the divine. The first serious attempt to emulate the classical epic in the Renaissance was the Portuguese poet Luís Vaz de Camões’s Os Lusíadas (1572), a poem about Vasco da Gama’s first voyage to India from 1497 to 1499. In spite of all the formal trappings of the epic—narrative in media res, divine council, and the like—the cosmic order breaks down. No longer are strangers and natives governed by the law of Zeus/Jupiter in their encounter, as can be seen in the Homeric or Virgilian rituals of hospitality and descriptions of just war. Instead, the natives try desperately to fend off the threat of strangers, while the Portuguese try to aggrandize their country and their ruler. Even the poet’s repeatedly proclaimed ambition to surpass Homer and Virgil turns out to be part of the endeavor to redound upon the greatness of Portugal. Showing self-interest, self-preservation and self-aggrandizement to be the motive forces of action, Camões’s epic poem proves to be a purveyor of the political doctrines of reason of state. Formally, it bears the traits of advice book for princes as well as those of annals—two main genres in the literature of reason of state. The discourse of reason of state, inaugurated by Niccolò Machiavelli (1469–1527) and Francesco Guicciardini (1483–1540) and culminating in the works of Giovanni Botero (1544–1617) and Justus Lipsius (1547–1606), is concerned with the efficiency and technical rationality of statecraft rather than with the normative foundation and purpose of the state. As regards the relations between states, it is concerned with the techniques of diplomacy and warfare rather than with a normative order. With a plot illustrating the maxims of reason of state, Os Lusíadas describes diplomatic intrigues and bellicose skirmishes between strangers and natives, displaying the absence of any higher law capable of bridging their differences. If the classical epic exhibits a lawful order of the human world under divine auspices, Os Lusíadas demonstrates its impossibility in an age under the sway of reason of state.

Precisely by trying to reinvigorate the ancient theory of natural law and the classical epic, Neoscholastic jurisprudence and the Renaissance epic testified to their obsolescence. In Vitoria’s legal thought and Camões’s epic poem, the universal, immutable world order disintegrated, falling victim to the legal concepts of subjective natural right and voluntary consent, as well as to the political doctrines of reason of state. These concepts and doctrines, for their part, prompted a new way of conceiving of world order—public international law. Francisco Suárez (1548–1617), the last significant representative of Spanish Neoscholasticism, radicalized the concepts of subjective natural right and voluntary consent. A member of the Society of Jesus founded in 1534 as part of the Catholic effort to counter the Protestant Reformation, Suárez set much store by the free will. The overarching voluntarist approach enabled him first to develop a theory of the state as a corpus mysticum brought into being by the consent of individual persons. Ascribing a free will to the state, he then argued that the free consent of states gave rise to a law regulating their relations to each other—international law. In the meantime, Alberico Gentili (1552–1608), a jurist in the tradition of mos italicus, realized the necessity of legalizing reason of state. If reason of state is amenable to any law, it can only be one that facilitates the pursuit of interest, for example the law of embassy that helps channel the communication between states, or the law of war that helps states settle their conflicts in an orderly fashion. Finally, Hugo Grotius (1583–1645) synthesized the concept of subjective natural right and the concept of interest, turning them into the principle of the natural right to life and property. Deducing the laws of nature from this principle, he inaugurated modern natural jurisprudence. Applied to states, the laws of nature become international law. According to Grotius, the voluntary agreements between states—treaties and customs—also belong to international law, and they depend, to an even higher degree, on the subjective rights and interests of the parties involved. With Suárez, Gentili, and Grotius, world order became a matter of legal order between states.

Universal Laws in Flux (Neoscholastic Jurisprudence)

The Birth of the Subject of Natural Law in the New World

Beset by political turmoil at home, unceasing wars across Europe, and brutal conquests overseas, jurists in the sixteenth century turned to the ancient tradition of natural law to affirm a normative order for a time out of joint. Their arguments, however, bore testimony to the inadequacy of the ancient tradition. World order ceased to be guaranteed by the universal, immutable laws of nature.

Inspired by Stoic ideas, Cicero (106–43 BCE) conceived of the world as a “civitas communis deorum atque hominum,” a well-ordered community abiding by an unchanging law—a law that issues from the divine, yet is recognized by the human, because the human is endowed with the divine faculty of reason.⁴ This law animating the world as a whole is the law of nature: “Law in the proper sense is right reason in harmony with nature. It is spread through the whole human community, unchanging and eternal, calling people to their duty by its commands and deterring them from wrong-doing by its prohibitions.”⁵ Because the only true law is the law of nature established by right reason, laws enacted by a particular polity, as well as laws obtaining among polities, must be consistent with it: “We cannot be exempted from this law by any decree of the Senate or the people; nor do we need anyone else to expound or explain it. There will not be one such law in Rome and another in Athens, one now and another in the future, but all peoples at all times will be embraced by a single and eternal and unchangeable law.”⁶ In the Christian era, church fathers found the Stoic idea of natural law so amenable to Christian dogmas that they integrated it into their theological considerations without much difficulty. For St. Augustine (354–430 CE), when man grows and approaches the years of reason, “he knows the natural law which all have fixed in their hearts: what you do not wish to be done to you, do not do to another. Is this learned from the pages of [books] and is not read, in a way, in nature itself?”⁷ Meanwhile, natural law was not only a philosophical and theological theorem, but also an integral part of jurisprudence. The Roman jurist Ulpian spoke of ius naturale as “that which nature has taught to all animals; […] Out of this comes the union of man and woman which we call marriage, and the procreation of children, and their rearing.”⁸

Thomas Aquinas consummated the ancient tradition of natural law, not only by weaving together the various strands of this tradition—pagan and Christian, philosophical, theological, and juristic—into a whole, but also by setting off, in his true Scholastic manner, natural law against other kinds of law. Law, according to his Summa Theologica, is “a kind of rule and measure of acts, by which someone is induced to act or restrained from acting.”⁹ Its purpose is to order things in such a way as to secure the common good. Insofar as ruling and measuring is proper to reason, law can be best defined as the rational ordering of things. By means of law (lex), a rational order—an objective relationship of equality or reciprocity—is instituted, called right (ius) or “the just thing itself” (IIaIIae, q. 57, a. 1). The rational pattern of all things in the universe, laid down by God as the omnipresent ruler, is the eternal law. The participation of the rational creature in the eternal law is called the natural law. It comes in a variety of commands and prohibitions, which are supposed to be in force in all human societies regardless of faith (because it is not the divine law) and local particularities (because it is not human laws), which cannot be changed (IaIIae, q. 94, a. 5), and which are ingrained in the hearts of men (IaIIae, q. 94, a. 6). This conception of natural law epitomizes the idea of ordo at the heart of medieval thought.¹⁰ Aquinas spoke of a twofold order: “The one, whereby a created thing is directed to another, as the parts to the whole, accident to substance, and all things whatsoever to their end; the other, whereby all created things are ordered to God” (Ia, q. 21, a. 1). As well as designating the ordered relation of creatures with one another, the natural law instantiates the ordered relation to God, for it is grounded in the eternal law. The order of the human world is predicated upon divine order. As Giorgio Agamben points out with regard to Aquinas, “Things are ordered insofar as they have a specific relation among themselves, but this relation is nothing other than the expression of their relation to the divine end. And, vice versa, things are ordered insofar as they have a certain relation to God, but this relation expresses itself only by means of the reciprocal relation of things. The only content of the transcendent order is the immanent order, but the meaning of the immanent order is nothing other than the relation to the transcendent end.”¹¹ This point ...